Retiring Sen. Jeff Flake (R-Ariz.) is gumming up the work on judicial nominations during the lame duck session before Christmas, promising to vote no on any judges nominated by President Donald Trump on the floor and to vote block any brought out of the Senate Judiciary Committee, writes Robert Romano
Flake is demanding action on legislation that would shield Special Counsel Robert Mueller from being fired by an Attorney General unless a three judge panel agrees, in effect unconstitutionally conferring executive powers to approve firings of executive branch officials on the United States District Court for the District of Columbia.
Why are those executive powers? Because the Special Counsel is appointed by the Attorney General or his designee, and are officers of the executive branch under Article II of the Constitution. He reports to, in this case, Acting Attorney General Matthew Whitaker.
Courts have zero role under Article III of the Constitution to make staffing decisions for the executive branch. Zero. Judges and justices’ job is to say what the law is in cases of constitutionality. They can hear appeals. They can try cases. But they do not step in and conduct the oversight that is supposed to be handled by the heads of departments or the President himself.
A court is no position to determine what constitutes “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause…” as under the bill, which provides no definitions for what constitutes misconduct. But even if it did, it would not obviate the fact that the executive branch determines staffing of its own branch. Period.
Besides that, all executive powers under the Constitution are vested in the President under Article II. That includes the implied power to fire executive branch officials, even ones that have been confirmed by the Senate. That same legal authority extends to the heads of departments via statute, including the Justice Department, to remove executive officers for insubordination or misconduct.
The Special Counsel, which is in essence a political appointment when the Attorney General recuses himself, is not above the same oversight or accountability. And it would be foolish especially in this case to make such an exception.
There are now allegations that the Special Counsel is demanding false statements from witnesses. Former National Security Advisor Michael Flynn was coerced by Mueller into pleading guilty to lying to investigators when the investigators in the case never thought he was lying in the first place.
Paul Manafort, Jerome Corsi and other targets of the Mueller’s investigations and prosecutions have refused to, in their eyes, lie to courts to appease Mueller.
One-time Trump campaign advisor George Papadopoulos similarly pleaded guilty to lying to investigators about what his start date on the Trump campaign was, even though the questioning had to do with contacts he had that were supposedly Russian agents that now Papadopoulos is now spectacularly alleging were undercover Western intelligence operatives who set him up.
The entire investigation appears to have originated from a Democratic National Committee and Hillary Clinton campaign paid for opposition research by Fusion GPS and former British spy Christopher Steele, which the FBI used as evidence to gather a Foreign Intelligence Surveillance Act (FISA) court warrant. The origins of the dossier were hidden from the court.
The FBI and the Justice Department were getting bad information about the Trump campaign and colluding with Russia. For example, former Trump attorney Michael Cohen, who is now pleading guilty to making false statements to Congress, was said by Steele to be in Prague in the summer of 2016, allegedly meeting with Russian intelligence officers to clean up the Wikileaks mess. There’s only one problem. Cohen was never to Prague. He even showed his passport to Buzzfeed to prove it. And now Cohen lawyer Lanny Davis confirmed that Cohen had “never, ever” been to Prague. Finally, the new plea deal has nothing to with the Prague trip that never happened, it had to do with when Cohen says a potential real estate deal in Russia that never happened was being discussed.
Well, if Steele was wrong about Cohen being Prague, then Cohen couldn’t have been there colluding with Russian agents, either. Steele had accounts of conversations that Cohen supposedly had there, but not having been there, the conversations could not have happened either. It was a fabrication, calling into question Steele’s other claims about Manafort, Page and others as having conspired with Russia to hack the DNC and John Podesta emails and put them on Wikileaks.
None of the charges brought by Mueller against Trump campaign and administration officials and associates have actually made the case that they had anything to do with hacking the DNC or Podesta. Manafort was convicted on unrelated bank and tax charges. Page has not been charged with anything. There was no collusion as Steele alleged. That should have been the end of it.
Corsi appears to be accused of trying to find out when Wikileaks might be publishing some of that information, when the entire country was trying to figure out what Wikileaks might publish next—and in any event that’s not illegal. The plea deal that he was offered was just another false statements charge.
What is this, a memory quiz show, or a real investigation into espionage?
The point is that the investigation has gone far beyond its mandate. Deputy Attorney General Rod Rosenstein should have reined it in long ago. But he didn’t. Now it falls on Acting Attorney General Whitaker and eventually the new permanent Attorney General to conduct oversight. Mueller is not a free agent.
This witch hunt far exceeds the crimes originally tasked to Mueller to investigate, which was the alleged hack and election interference by Russia. Evidence tying Trump directly to the hack have been sought but could not be found, and so the Special Counsel swept in and dug up unrelated allegations and crimes to justify continuing the investigation. That’s not justice, that should have been the work of the politically overseen Justice Department if anything.
Nobody elected Mueller. Yet some in Congress would make him an extraconstitutional officer whose job it is to take down this administration. That’s not his job. The American people make political decisions about who sits in the White House, not the Justice Department.
This is a runaway investigation. And the only effect the legislation that Flake is supporting would have is to ensure that it never ends.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.